Maharjan (No 2) v MHA

[2020] FCCA 731

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAHARJAN v MINISTER FOR HOME AFFAIRS & ANOR (No.2) [2020] FCCA 731

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision made by the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicant a Student (Temporary) (Class TU) visa as a member of the family unit of a person who held a student visa – whether in concluding it was not satisfied the applicant was a “genuine applicant for entry and stay as a member of the family unit . . . because . . . the applicant intends genuinely to stay in Australia temporarily” the Tribunal asked itself the wrong question – whether the Tribunal failed to take into account the applicant’s marriage with a person who held the student visa of whose family unit the applicant was a member – whether the Tribunal took into account an irrelevant consideration by inquiring into the applicant’s history as the holder of a student visa which he held not as a member of the family unit of a person who did hold a student visa – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth), Schedule 1, Part 3

Migration Act 1958 (Cth), ss.476, 477(1), 477(2)

Migration Regulations 1994 (Cth), Schedule 2, cl.500.312

Cases cited:

Maharjan v Minister For Home Affairs & Anor [2019] FCCA 433

Applicant: YOGESH MAHARJAN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 935 of 2018

Judgment of: Judge Manousaridis

Hearing date: 1 May 2019

Date of Last Submission: 29 May 2019

Delivered at: Sydney

Delivered on: 1 April 2020

REPRESENTATION

Counsel for the Applicant: Mr J R Young

Solicitors for the Applicant: Shamser Thapa & Associates

Counsel for the First Respondent: Mr G Johnson

Solicitors for the First Respondent: Mills Oakley Lawyers

ORDERS

1. Pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) the 35 day period prescribed by s.477(1) of the Act for making an application for relief under s.476 of the Act in relation to the decision of the second respondent (Tribunal) made on 28 February 2018 is extended to 5 April 2018.

2. The applicant have leave to file an amended application in the form of the draft amended application annexed to the applicant’s written submissions filed on 17 April 2019, except that ground 4 be removed from the draft amended application before it is filed.

3. By 7 April 2020 the applicant file and serve the amended application.

4. The application be dismissed, such dismissal to take effect on 8 April 2020.

5. Subject to order 6, in addition to the costs the applicant on 26 April 2018 was ordered to pay, the applicant pay the first respondent’s costs set in the amount of $7,328.

6. The parties have liberty to apply by 22 April 2020 for an order varying or discharging order 5.

7. The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 935 of 2018

YOGESH MAHARJAN

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the second respondent (Tribunal). By that decision the Tribunal affirmed the decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) visa (Student visa).

2. The Tribunal affirmed the delegate’s decision on the ground that it was not satisfied the applicant satisfied the criterion provided for by cl.500.312 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That clause requires, among other things, that an applicant who applies as a member of the family unit of a person who holds a student visa is a “genuine applicant for entry and stay… because the applicant intends genuinely to stay in Australia temporarily”.

Procedural background

1. On 1 March 2019 I published reasons for judgment (earlier reasons) in support of an order to set aside an order that had been made dismissing the application under s.477(2) of the Act.[1] I there set out cl.500.312 of Schedule 2 to the Regulations, and the grounds on which the Tribunal affirmed the delegate’s decision. These reasons for judgment should be read with my earlier reasons.

   [1] Maharjan v Minister For Home Affairs & Anor [2019] FCCA 433

2. On 5 March 2019 I made directions for the filing of an amended application and the filing of evidence and written submissions; and I set the matter down for hearing on 1 May 2019. On 17 April 2019 the applicant filed submissions prepared by his counsel (applicant’s April Submissions) attaching a draft amended application. In those submissions counsel said the applicant intended to rely on the submissions the applicant filed on 20 February 2019 in response to the email I caused my associate to send to the parties on 7 February 2019 (applicant’s February Submissions).[2] Counsel further stated the applicant will seek leave to file an amended application “with additional grounds as below which set out the jurisdictional issues with somewhat more precision than the Applicant’s lay drafted grounds”. The applicant’s April Submissions, however, do not address grounds 3, 4, and 5 of the draft amended application.

   [2] Earlier reasons, [19]

3. The Minister, by his counsel, filed his written submissions on 24 April 2019. Counsel stated the Minister does not resist the Court making an order under s.477(2) of the Act. Because in my earlier reasons I found there is merit in the grounds stated in the application as filed, and the applicant applied to this Court for remedies under s.476 only one day after the 35 day period provided for by s.477(1) of the Act, I am satisfied it is necessary in the interests of the administration of justice that I make an order under s.477(2) of the Act extending the 35 day period prescribed by s.477(1) of the Act to 5 April 2018. I will make an order to that effect.

4. In his written submissions the Minister addresses each of the grounds contained in the draft amended application. These include grounds 1 and 2 of the application as currently filed, and grounds 3, 4, and 5 of the draft amended application. At the hearing before me, however, counsel for the Minister opposed the applicant filing an amended application in the form of the draft amended application because the applicant did not file it by the time he was required to do so. I indicated to counsel for the parties that I would proceed on the basis that the applicant seeks leave to file an amended application in the form of the draft amended application, but I would hear submissions on the merits of all of the grounds contained in the draft amended application.

5. Counsel for the applicant made submissions in general terms, that is, without reference to the grounds stated in the draft amended application. Towards the end of his address, however, counsel informed me that “basically” his submissions were directed to ground 5 of the draft amended application. In his oral submissions counsel for the Minister responded to the submissions counsel for the applicant made, and said he was otherwise content to rely on the Minister’s written submissions.

Approach

1. In light of the manner in which this matter has been litigated, I will begin with ground 5 of the draft amended application. I will consider whether that ground has sufficient merit to warrant my granting the applicant leave to file an amended application that includes ground 5 and, if so, and there is no reason why I should not permit the applicant to rely on ground 5, I will determine whether the applicant succeeds on ground 5. I will then consider grounds 3 and 4 of the draft amended application in the manner I propose to consider ground 5, and then consider grounds 1 and 2 of the application.

Ground 5 of draft amended application

1. Ground 5 is as follows:

   The Second Respondent made jurisdictional error by asking itself the wrong question (being why the Applicant had made relatively poor academic progress) in circumstances where no issue of future study by the Applicant arises for determination.

2. Counsel for the applicant submitted the Tribunal did not address the question cl.500.312 of Schedule 2 to the Regulations required it to consider, namely, whether, as a member of the family unit of a person who holds a student visa, the applicant intends to stay in Australia temporarily. Counsel took me in detail through the Tribunal’s reasons. Counsel particularly relied on the Tribunal’s finding that the applicant “is using the student visa programme for the primary purpose of maintaining residence in Australia”, and that the Tribunal was “not persuaded that he considers his time onshore to be temporary”.[3] Counsel submits this finding is explicable only on the basis that the Tribunal was considering the applicant’s performance as a student because “it would otherwise be a finding that either the marriage wasn’t genuine or that he was contriving a relationship with the wife that the wife wasn’t aware of, if she thought it was genuine and he was just manufacturing a relationship, or that she intended to go back to Nepal or he didn’t”.[4]

   [3] CB107, [21]

   [4] T13.40

3. The Minister, in his written submissions, submits there is no indication the Tribunal was considering anything other than the question whether the applicant was a genuine applicant for entry and stay as a member of the family unit of a person who held a student visa because he intends genuinely to stay in Australia temporarily. The Minister submits the Tribunal took into account the matters Direction 69 required it to take into account; and there is no question that the applicant’s history as a student was relevant to determining whether the applicant was a genuine applicant for entry and stay because he intends to genuinely stay in Australia temporarily. Put another way, the Minister submits, a person’s being in Australia studying on a temporary visa with no obvious intention of obtaining a qualification in Australia and departing from Australia (but, rather, remaining in Australia for as long as possible) would be relevant to assessing whether that person genuinely intends to stay in Australia temporarily. The Minister further submits the Tribunal took into account the applicant’s study history for the purpose of, and considered whether the applicant had complied with, visa conditions in the past.

4. During oral address counsel for the Minister repeated the substance of the Minister’s written submissions. Counsel, however, also referred to the Tribunal’s mentioning,[5] and therefore, to the Tribunal’s being aware of, the contents of a statutory declaration made by the applicant’s wife. In that statutory declaration the applicant’s wife declared, among other things, that she is legally and happily married to the applicant, that she will return with the applicant to Nepal “next year” after she completes her Bachelor’s degree, and that the applicant has always been supportive of the applicant’s wife emotionally, financially, and physically.[6] Counsel for the Minister also referred to the Tribunal’s mentioning, and, therefore, to the Tribunal’s being aware of, the applicant’s evidence that he too will return to Nepal when his wife completes her course.[7] Counsel submitted the Tribunal, therefore, did take into account the fact that the applicant was married, and that his wife intended to return to Nepal at the end of her studies.

   [5] CB106, [12]

   [6] CB97

   [7] CB106, [16]

5. It is reasonably arguable the Tribunal did not ask itself the correct question, and, for that reason, there is sufficient merit in ground 5 of the draft amended application to permit the applicant leave to rely on it, provided there is no reason why, in the exercise of my discretion, I ought not permit the applicant leave to rely on ground 5. Although reasonably arguable, however, I am not satisfied the Tribunal failed to ask itself the correct question.

   a)First, the Tribunal identified as the question it was required to determine whether “the applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa”,[8] and it set out the text of cl.500.312.

   b)Second, the Tribunal determined the question it posed. It did so by considering whether the applicant intended to stay genuinely in Australia temporarily, and by concluding it was not so satisfied.[9]

   c)Third, although, as counsel for the applicant submitted, the Tribunal devoted much of its analysis on the applicant’s poor academic record, for the reasons I give later, the applicant’s academic history was relevant to whether the applicant intended to genuinely stay in Australia temporarily.

   d)Fourth, the Tribunal was aware the applicant was married. It referred to the applicant’s wife having provided a statutory declaration declaring to the genuineness of her marriage to the applicant and their shared intention to return to Nepal when the applicant’s wife completes her course. The Tribunal also referred to the applicant’s giving evidence to the same effect. Being aware of the applicant’s and the applicant’s wife’s evidence, I am not satisfied the Tribunal did not consider their evidence, or that it considered the evidence not to be relevant.

   e)Fifth, given the matters relating to the applicant to which the Tribunal did refer,[10] it was reasonably open to it not to accept the applicant’s evidence, and his wife’s statutory declaration, that the applicant intended to return to Nepal after the applicant’s wife were to complete her course, even if the Tribunal were to accept the applicant’s marriage was genuine, and that the applicant’s wife intended to return to Nepal when she completed her course. On a fair reading of its reasons, the Tribunal was prepared to accept that the applicant’s marriage to his wife is genuine, and that the applicant’s wife intended to return to Nepal when she finishes her course. The Tribunal was not, however, prepared to accept that the applicant would do likewise; and that was a finding it was reasonably open to it to make having regard to the matters on which it relied in its reasons for decision. That a person’s spouse is committed to returning to a country does not necessarily mean that the person also intends to return to that country, at least at the same time as the spouse intends to return to his or her country.

   f)Sixth, there is the Tribunal’s ultimate conclusion concerning the applicant’s claims, namely, that he “is using the student visa programme for the primary purpose of maintaining residence in Australia and is not persuaded that he considers his time onshore to be temporary”. Counsel for the applicant submits that this conclusion manifests error because it is directed to the applicant’s history as a student. Whether that is so depends on what the Tribunal meant by “the student visa programme”. Counsel’s submission assumes the Tribunal used this expression to refer only to primary applications for, or holders of, student visas. I do not accept that assumption is correct. The “student visa programme” comprises not only primary applicants, but also persons who apply as members of the family unit of persons who hold student visas. In my opinion, the Tribunal intended the expression “student visa programme” to refer to the student visa programme as a whole which provides for the granting of student visas not only to primary applicants to study in Australia, but also to those who apply as members of the family unit of persons who apply for or who hold a student visa. Thus, the Tribunal’s finding that the applicant was using “the student visa programme for the primary purpose of maintaining residence” is a finding that the applicant has applied for a student visa as a member of the family unit of his wife who holds a student visa for the primary purpose of maintaining residence in Australia.

   [8] CB104, [7]

   [9] CB107-108, [22], [23]

   [10] See Maharjan v Minister For Home Affairs & Anor [2019] FCCA 433, at [16]

6. Although the applicant gave notice of his intention to rely on ground 5 after the time he was directed to do so, the Minister addressed the ground in his written submissions and, for that reason, the Minister will suffer no prejudice if I permit the applicant leave to rely on it. In those circumstances, and given I have found ground 5 to be reasonably arguable, I propose to grant the applicant leave to file an amended application that includes ground 5. For the reasons I have given, however, ground 5 fails and the amended application will be dismissed to the extent it will rely on ground 5.

Ground 3 of draft amended application

1. Ground 3 of the draft amended application is as follows:

   The Second Respondent made jurisdictional error by failing to have regard to a mandatory relevant consideration, being the relationship (marriage) between the Applicant and his wife who was the holder of the relevant student visa.

2. As I have already noted, this ground is not addressed in the applicant’s April Submissions, and counsel for the applicant did not specifically address this ground. In his written submissions the Minister submits the applicant’s relationship with his wife was not a mandatory relevant consideration.

3. Clause 500.312 of Schedule 2 to the Regulations is directed to a particular class of persons, namely, those who do not hold a student visa, who bear a relationship with another class of persons, namely, persons who hold a student visa, and requires that there be a relationship between the two classes of persons, namely, membership by the first class of persons of the family unit of the second class of persons. In the circumstances of the applicant before me, the relevant relationship is husband and wife. Clause 500.312 required the Tribunal to consider whether the applicant was a “genuine applicant for entry and stay as a member of the family unit” of his wife “because the applicant intends genuinely to stay in Australia temporarily”. Thus, whether the applicant was such a person had to be determined in the context of his being married to his wife. To that extent, therefore, and contrary to the Minister’s submissions, the applicant’s marriage was a mandatory consideration.

4. The question ground 3 raises is whether the Tribunal took into account the applicant’s marriage. I have already found the Tribunal was aware the applicant was married, and that his wife had provided a statutory declaration declaring to the genuineness of their marriage and their shared intention to return to Nepal when the applicant’s wife completes her course; the Tribunal was aware the applicant gave evidence to the same effect; and, in those circumstances, I am not satisfied the Tribunal did not consider this evidence. I have also found that, on a fair reading of the Tribunal’s reasons, the Tribunal was prepared to accept that the applicant’s marriage to his wife is genuine, and that the applicant’s wife intended to return to Nepal when she finishes her course, but that the Tribunal was not prepared to accept the applicant intended to do likewise.

5. It is reasonably arguable the Tribunal did not consider the applicant’s relationship with his wife, and I will grant the applicant leave to file an amended application that includes ground 3. I am not satisfied, however, that the Tribunal did not consider the applicant’s relationship with his wife. Ground 3, therefore, fails.

Ground 4 of draft amended application

1. Ground 4 of the draft amended application is as follows:

   The Second Respondent made jurisdictional error by having regard to an irrelevant consideration, namely, the Applicant’s own progress as a student.

1. This ground is not reasonably arguable. The applicant’s own academic record was relevant to determining whether the applicant was a “genuine applicant for entry and stay as a member of the family unit  . . . because . . . the applicant intends genuinely to stay in Australia temporarily”. The applicant’s poor academic performance afforded evidence on the basis of which it was reasonably open for the Tribunal to infer that the applicant, when he held a student visa, had no genuine intention of staying in Australia for the purpose for which the student visa was granted, namely study, and for that reason did not hold an intention genuinely to stay temporarily in Australia; and such findings, if made, is a reasonable basis for inferring that the applicant similarly did not hold a genuine intention to stay in Australia temporarily as a member of his wife’s family unit if such visa were granted to him in that capacity. In other words, a finding that the applicant did not in relation to one class of temporary visa intend genuinely to stay temporarily in Australia is a rational basis for inferring that the applicant would not have a genuine intention to stay temporarily in relation to another class of temporary visa for which he applied.

2. Thus, I do not propose to grant the applicant leave to file a draft amended application to the extent it includes ground 4.

Grounds 1 and 2 of current application

1. These may be considered together, and they are as follows (errors in original):

   1.Tribunal has denied to grant me the student subsequent entrant visa on the visa of my wife . . . though we have been married and living as husband and wife before applying for subsequent entrant visa.

   2.Tribunal has failed to give fair decision for the spouse who are living conjugal life and wants to help and support to and from each other in every aspect.

2. These grounds overlap with, if not in effect repeat, the substance of ground 5 of the draft amended application. To the extent they do, they fail for the reasons I have found ground 5 of the draft amended application would fail.

3. I need only finally mention the submissions made in the applicant’s February Submissions that may be taken to have been directed to grounds 1 and 2. The applicant there submitted that cl.500.312(a)(i) and (iv) of Schedule 2 to the Regulations required the Tribunal to consider the applicant’s circumstances, and any relevant matter; but the Tribunal did not do that. Instead, the Tribunal considered “almost exclusively his own record as a student”, rather than the applicant’s circumstances which did not depend on his being a student. The applicant submitted that the question the Tribunal was required to ask, but did not ask, is: having regard to the applicant’s circumstances as being the husband of a person who satisfied the primary criteria for a student visa, and whose visa was valid until 15 March 2019 and who married the applicant after the grant of her student visa, did the applicant intend to stay in Australia temporarily?

4. These submissions appear to be premised on what is made explicit in ground 4 of the draft amended application, namely, that the applicant’s record as a student was not relevant. For reasons I have already given, the applicant’s history as a student was relevant to whether the applicant is a “genuine applicant for entry and stay as a member of the family unit . . . because . . . the applicant intends genuinely to stay in Australia temporarily”. Further, I am not satisfied the Tribunal only considered the applicant’s history as a student; the Tribunal considered the applicant’s circumstances;[11] and I have already concluded I am not satisfied the Tribunal did not consider the applicant was married to a person who held a student visa, and that it did not consider the applicant’s and the wife’s evidence that the applicant intended to return to Nepal after the applicant’s wife were to complete her course.

   [11] See Maharjan v Minister For Home Affairs & Anor [2019] FCCA 433, at [16]

5. Grounds 1 and 2, therefore, fail.

Utility of relief

1. After the hearing before me the parties filed written submissions about relief, assuming the applicant were to succeed on any of his grounds. That question arose because by the time of the hearing before me the applicant’s wife’s student visa had ceased. Because I have concluded that the applicant fails on all of the grounds or proposed grounds on which he relies, it is not necessary to consider the question of the utility of relief.

Disposition

1. I propose to grant the applicant leave to file an amended application in the form of the draft annexed to the applicant’s April Submissions, except that ground 4 be removed from it; that the applicant file an amended application within seven days; but that the application be dismissed, such dismissal to take effect seven days after I pronounce my orders.

2. I also propose to order that the applicant pay the Minister’s costs set in the amount of $7,328. That is the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) as at 5 April 2018, being the day on which the applicant commenced this proceeding. These costs will be in addition to the costs the Registrar ordered the applicant to pay on 26 April 2018. I will, however, reserve to the parties liberty to apply within 21 days to vary or discharge the order for costs I propose to make because the parties did not make submissions on costs.

3. Finally, I will order that the Minister’s name be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  1 April 2020